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Lemberger v. Unlimited Cargo Transport, LLC

United States District Court, E.D. Missouri, Eastern Division

October 18, 2016

KENNETH LEMBERGER, Plaintiff,
v.
UNLIMITED CARGO TRANSPORT, LLC, MEHMED SPAHIC and ELVEDIN SPAHIC Defendants. UNLIMITED CARGO TRANSPORT, LLC, Counter Claimant.
v.
KENNETH LEMBERGER, Counter Defendant.

          MEMORANDUM AND ORDER

          E. RICHARD WEBBER SENIOR DISTRICT JUDGE

         This matter comes before the Court on Defendants Unlimited Cargo Transport, LLC, Mehmed Spahic, and Elvedin Spahic's (collectively, “Defendants”) Motion to Dismiss Plaintiff's Complaint, or Alternatively to Strike and/or Make Plaintiff's Claims More Definite and Certain [ECF No. 4].

         I. BACKGROUND

         Plaintiff Kenneth Lemberger initiated this lawsuit by filing a Petition in in the Circuit Court of St. Louis County. On July 5, 2016, Defendant Unlimited Cargo Transport, LLC (“UCT”), removed the Petition to this Court pursuant to 28 U.S.C. §§§ 1331, 1441 and 1367 [ECF No. 1]. Defendants Mehmed Spahic and Elvedin Spahic consented to the removal [ECF No. 2]. On the same date, Defendants filed their pending Motion to Dismiss. Defendant UCT subsequently filed a Counterclaim against Plaintiff [ECF No. 11]. On August 19, 2016, the Court noted Plaintiff had not yet filed a response to Defendants' Motion to Dismiss and ordered Plaintiff to show cause why Defendants' Motion should not be granted. On September 9, 2016, Plaintiff filed his Memorandum in Opposition re: Defendants' Motion to Dismiss, his Response to this Court's order to show cause, and his motion to dismiss Count I of his Petition without prejudice [ECF No. 13].

         In his Petition, Plaintiff claims he was employed by Defendants as a company driver during two separate periods of employment. Plaintiff alleges each of the Defendants-UCT, Mehmed Spahic and Elvedin Spahic-were his employers. He further alleges the Spahics are the owners of UCT and exercised complete dominion and control over the LLC as its “alter egos.” Plaintiff asserts four counts-the first two allege violations of the Fair Labor Standards Act of 1938, 29 U.S.C. 201-219 (the “FLSA”). In Counts I and II, Plaintiff contends he was paid less than the minimum wage of $7.50 an hour in violation of the FLSA during his two episodes of employment with UCT.

         In Plaintiff's third count, he maintains Defendants failed to return $1, 000 in escrowed funds to him. Lastly, in Count IV, Plaintiff alleges Defendants assigned him a defective truck and he was required to incur $3, 000.00 in repairs. Plaintiff argues Defendants' provision of the defective truck violated the warranty set forth in the lease agreement between the parties. Plaintiff further alleges Defendants made fraudulent representations that the truck complied with Federal and State laws.

         Defendants move to dismiss Plaintiff's complaint or to strike his improper counts for failure to state a claim upon which relief can be granted pursuant to Federal Rules of Civil Procedure (“FRCP”) 12(b)(6) and 12(f). Specifically, Defendants maintain dismissal is proper with regard to Counts I and II because Plaintiff failed to state sufficient facts alleging a violation of the minimum wage requirement under the FLSA. Defendants argue Plaintiff failed to plead the number of days and hours he worked or the manner and amount of compensation he received. Moreover, Defendants also contend Mehmed Spahic and Elvedin Spahic (the “Spahic Defendants”) should be dismissed from the case because Plaintiff failed to adequately plead they were his employers. In the alternative, should this Court deny Defendants' Motion to Dismiss or Strike, Defendants request that Plaintiff be required to make his claims more definite and certain pursuant to FRCP 12(e).

         For the purpose of this Motion, the Court accepts as true the following facts alleged in Plaintiff's Petition. Great Rivers Habitat Alliance v. Fed. Emergency Mgmt. Agency, 615 F.3d 958, 988 (8th Cir. 2010). Plaintiff performed services for UCT as a truck driver during two separate time periods. The first period occurred during 2014. The second period commenced in March 2015 and ended in September 2015. On March 20, 2015, Plaintiff entered into an Independent Contractor Lease Agreement and an Equipment Lease Agreement with UCT and was assigned a truck. Defendants unilaterally arranged and booked loads for Plaintiff to transport and then instructed Plaintiff when and where to pick up and deliver the loads. Plaintiff was obligated to accept each load. If Plaintiff failed to pick up a load as directed, he would be required by Defendants to wait for another load, which would result in a loss of income to Plaintiff. Defendants did not permit Plaintiff to work for other hauling companies. Plaintiff worked 16 hours a day and was not paid the minimum wage.

         II. STANDARD

         Under FRCP 12(b)(6), a party may move to dismiss a claim for “failure to state a claim upon which relief can be granted.” The notice pleading standard of FRCP 8(a)(2) requires a plaintiff to give “a short and plain statement showing that the pleader is entitled to relief.” To meet this standard and to survive a FRCP 12(b)(6) motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations and citation omitted). This requirement of facial plausibility means the factual content of the plaintiff's allegations must “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Cole v. Homier Distrib. Co., 599 F.3d 856, 861 (8th Cir. 2010) (quoting Iqbal, 556 U.S. at 678). The Court must grant all reasonable inferences in favor of the nonmoving party. Lustgraaf v. Behrens, 619 F.3d 867, 872-73 (8th Cir. 2010).

         When ruling on a motion to dismiss, a court Amust liberally construe a complaint in favor of the plaintiff[.]@ Huggins v. FedEx Ground Package Sys., Inc., 592 F.3d 853, 862 (8th Cir. 2010). However, if a claim fails to allege one of the elements necessary to recovery on a legal theory, that claim must be dismissed for failure to state a claim upon which relief can be granted. Crest Constr. II, Inc. v. Doe, 660 F.3d 346, 355 (8th Cir. 2011). AThreadbare recitals of a cause of action, supported by mere conclusory statements, do not suffice.@ Iqbal, 556 U.S. at 678; Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007). Although courts must accept all factual allegations as true, they are not bound to take as true Aa legal conclusion couched as a factual allegation.@ Twombly, 550 U.S. at 555 (internal quotations and citation omitted); Iqbal, 556 U.S. at 677-78.

         III. DISCUSSION

         A. The Spahic Defendants

         As an initial matter, the Court will consider Defendants' argument that the Spahic Defendants should be dismissed from the case. Defendants contend Plaintiff did not properly plead facts establishing the Spahics were his employers as required under the FLSA. Plaintiff, in turn, counters he sufficiently ...


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